ACG Developments Pty Ltd v. Gold Coast City Council

[2007] QPEC 22

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

ACG Developments Pty Ltd v Gold Coast City Council [2007] QPEC 022

PARTIES:

ACG DEVELOPMENTS PTY LTD ACN 104 212 160

Applicant

V

GOLD COAST CITY COUNCIL

Respondent

FILE NO/S:

29 of 2007

DIVISION:

Planning and Environment Court

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

14 March 2007

DELIVERED AT:

District Court, Southport

HEARING DATE:

2 & 26 February 2007 (further written submissions received on 3 & 9 March 2007)

JUDGE:

Kingham DCJ

ORDER:

1. Application allowed.

CATCHWORDS:

JURISDICTION - APPLICATION FOR AMENDMENT TO REZONING ORDER – Where rezoning order made by the Local Government Court – Where local government restricted from providing approval – Where Governor in Council had previously approved the rezoning – Whether the applicant can bring application provided by constraint imposed by new section – Where express right to apply is given in section 6.1.5A(2)(b) – Where the District Court has the jurisdiction to order the modification sought.

APPLICATION FOR AMENDMENT TO REZONING ORDER – Where discretion exercised - Where modification sought of minor nature.

Integrated Planning Act 1997(Qld), s6.1.5A

Local Government Act 1936 (Qld), s34

Local Government (Planning and Environment) Act 1990 (Qld), s4.15, s7.2

Carillon Development Limited v Maroochy Shire Council [2000] QPLR 216 - followed

Turner v Miriam Vale Shire Council [1992] 2 Qd R 675 – applied

COUNSEL:

C. MacDonald for the Applicant

A.J. Knox for the Respondent

SOLICITORS:

Warlow Scott Lawyers for the Applicant

McDonald Balanda & Associates for the Respondent

1. ACG Developments Pty Ltd is the beneficiary of a rezoning order of this court’s predecessor, the Local Government Court, made on 16 November 1990. That order approved the inclusion of land at 572 Worongary Road, Worangary (lots 3 & 4 on GTP3326, County of Ward, Parish of Gilston) in the Special Faciities (Resort and Recreation Facilities) Zone, subject to certain conditions. ACG seeks an amendment of the approval in two respects both arising from a revised plan of development.  The Council does not have the power to modify the approval but supports the application. Both parties have submitted this Court has jurisdiction to deal with the application and the power to approve the amendment and, because the modifications are minor, I should exercise my discretion to approve the amendment.

Jurisdiction

1. Both parties submitted that the Court has jurisdiction to hear the application by the combined application of s6.1.35A of the Integrated Planning Act 1997 (IPA) and ss 4.15 & 7.2 of the Local Government (Planning and Environment) Act 1990 (P&E Act). S6.1.5A of IPA is a transitional provision which applies where a person wants to the change the conditions attached to an approval given under s4.4(5) of the P&E Act. It provides alternative processes for changing the conditions: make a development application under IPA or apply under either s4.3(1) or 4.15(1) of the P&E Act. If the latter process is chosen, the application must be processed by the local government as if the P&E Act had not been repealed.

1. Section 4.15(1) is the relevant provision in this case, involving, as it does, a rezoning approval. It contains an express restriction on the local government approving an application to modify an approval that was, as here, the subject of an appeal to and determination by the Local Government Court. It does not contain a similar restriction of the Court’s power.

1. In Turner v Miriam Vale Shire Council the Court of Appeal considered an analogous provision (s34 of the Local Government Act 1936). McPherson ACJ and Williams J found the Local Government Court retained the power to modify, in that case, a subdivision approval even though the local authority could not do so.

1. The two provisions (s34 LG Act and s4.15 P&E Act) contain a restriction in substantially similar terms[1]. However, s4.15 imposes an additional constraint, not present in s34. Section 4.15(1D) provides that an application cannot be made under s4.15(1) once the local government has made application for approval by the Governor in Council of the relevant rezoning. Mr Knox, the solicitor representing the Council, informed the Court that, as would be expected with an approval given some 16 years ago, the Governor in Council has approved this rezoning.

   [1] Section 34(10A) relevantly provided that “a Local Authority shall have no power under this subsection to amend an application which has been the subject of an appeal to the Court and the Court has made a determination on the appeal.” Section 4.15(2)(c) of the Local Government (Planning and Environment) Act 1990 relevantly provides:“(2) a local government is not to approve an application to modify made under subsection (1) where –(c) if the application to modify seeks the modification of an approval – the approval was the subject of an appeal to the Court and the Court has made a determination on the appeal.”

1. The issue, therefore, is not whether the local government can approve the modification sought, but whether ACG can make the application at all.

1. The significance of this further restriction has implications for this Court’s jurisdiction. The parties submitted this Court’s jurisdiction is founded by s4.15(10), which allows an applicant dissatisfied with the decision of a local government to apply to the court for a review of the decision under s7.2 of the P&E Act.

1. In Turner’s case, Williams JA, in interpreting s34 of the LGA, derived support for his view from the fact that there was no restriction on an application being made to the local government, just on the local government approving it. 

At 687 “Ultimately I have come to the conclusion that the wording of the proviso is of critical importance. Neither para. (a) nor Para. (b) of subs. (10A) provides that an application for amendment or modification may not be made where the Local Government Court has made a determination with respect to the original application for subdivision.  If that was the intention of the legislature then it would have been simple for the subsection to have so provided.  Rather, in each case, the wording of the proviso strongly suggest that an application for amendment or modification may be lodged after the Local Government Court has made a determination with respect to the original application, but in such circumstances the “Local Authority shall have no power” to amend or modify the application or approval as the case may be……The very fact that the subsection, to my mind, permits the making of such an application in circumstances where the Local Authority has no power to adjudicate upon it, strongly suggests that the application is not a nullity or a futility but may enliven the jurisdiction of the court to adjudicate further upon the matter.”

1. Neither party was able to refer me to any case in which a rezoning approval made by the Court and approved by the Governor in Council was subsequently modified by this Court or its predecessor. Were the fate of this application to rest only upon the interpretation of s4.15, in my view it would fail because s4.15(1D) would prevent the application being made. If the application cannot be made to the local government, it is a nullity and cannot enliven the jurisdiction of the court under those provisions. I do not accept the Council’s submission that the power of review vested in the Court by s7.2 overcomes the jurisdictional hurdle presented by s4.15(10), nor do I consider the passage relied upon by Council authority for that proposition.

1. However, the terms of s6.1.5A themselves must also be considered. S6.1.5(2) relevantly provides that “(2) A person may -…(b) apply under s4.15(1) of the repealed Act (P&E Act) to change the condition.” S6.1.5 contains no precondition to and imposes no restriction on to the circumstances in which an application may be made. By expressly conferring the right of application, the provision appears to address the difficulty which otherwise arises from the application of s4.15(1D).

1. S6.1.5A does provide an alternative avenue for the applicant, albeit a less attractive option, and that is to apply for a development permit under IPA. However, I do not think the clear words of s6.15(2)(b) should be read down for that reason alone. The ordinary meaning of the words is consistent with s6.1.5A(3) which provides that the application must be processed by the local government as if the repealed Act had not been repealed. It does not provide that s4.15 applies as if the repealed Act had not been repealed. I consider the effect of this distinction is that the right to apply is conferred by s6.1.5A(2) IPA, not s4.15 P&E Act and the way in which it is processed is governed by s4.15. Had it been intended that any restriction on making an application under s4.15(1) were to continue to apply, that could easily have been made explicit. I am satisfied that s6.1.5A(2)(b) confers on ACG the right to make an application pursuant to s4.15(1).

1. Turner’s case is authority for the proposition that the Court’s power to deal with an application under s4.15 is not restricted in the way in which the local government’s power is. This Court has the power to approve the modification sought.

1. I am persuaded that the modification is of a minor nature and would not adversely affect any person to a degree which would, if circumstances allowed, cause the person to make an objection (Carillon Development Limited v Maroochy Shire Council).  There is no suggestion that the modifications are to aspects of the development which were imposed specifically in response to an objection.

1. The modifications replace a reference to engineering plans submitted to the court to a reference to revised engineering plans.  The revised plans effect two changes:

1.          They reposition the internal private access road on the site so that it is closer to the eastern boundary so as to better service six stand alone buildings; and

2.          They reposition the six stand alone dwellings from the far eastern side of the site to the west of the repositioned internal road.

1. The lot adjacent to the eastern boundary is vacant. There may be an improvement in the amenity of the locality as the repositioned internal road will be shielded by the repositioned dwellings and there will be less vegetation removal.  The result of the modification is an improvement for the amenity of the site itself. The repositioned road will take account of the natural topography of the site and will, therefore, substantially reduce the depth of cut and fill required.  Further, the repositioned road takes account of the existing vegetation and a greater proportion of it will be retained. Finally, the road will serve as a fire break to the repositioned dwellings.

1. I have been informed of the general nature of objections made when this application was made. Whilst traffic was raised as a concern, this appeared to relate to external impacts and intersection details, not to the internal road itself.  Concerns raised as to run off from the site and loss of visual amenity due to clearing are addressed to some extent by the revised plans which reduce vegetation removal and, at least as far as the road is concerned, follow more closely the natural topography of the site.

1. I consider this an appropriate case in which to exercise the Court’s discretion to make the modification and make the declarations sought in paragraph 1 of the application.